Video Box Enterprises Inc. v. Lin, 2004 FC 286

Date: 20040226

Docket: T-2074-02

Citation: 2004 FC 286

Toronto, Ontario, February 26^th, 2004

Present:           The Honourable Mr. Justice O'Keefe                                  

BETWEEN:

                                               VIDEO VOX ENTERPRISES INC. and

                                                         TVB (OVERSEAS) LIMITED

                                                                                                                                                        Plaintiffs

                                                                                 and

XIANG RUI LIN carrying on business as ZHONG HUA VIDEO CENTRE and

AI HUA CHEN (also known as Ai Hua Lin) and

6045324 CANADA INC. carrying on business as ZHONG HUA VIDEO CENTRE

                                                                                                                                                    Defendants

                                               REASONS FOR ORDER AND ORDER

[1]                 This is a motion by the Plaintiffs to strike out the defence of Xiang Rui Lin ("Lin') and to enter default judgment for the Plaintiffs.

[2]                 The Plaintiffs indicated that they had been attempting to schedule discoveries in this matter since November 2003, but no convenient date for the Defendant Lin had been found.

[3]                 The Plaintiffs issued a direction to attend pursuant to Rule 91 of theFederal Court Rules, 1998 requiring Lin to attend an Examination for Discovery to be held on Thursday, February 5^th, 2004 at 10:00 a.m. LiN failed to appear.

[4]                 By letter dated January 19^th, 2004, Lin's solicitor indicated that they would be available any day during the week of February 16^th, 2004 or on February 23^rd or 24^th, 2004.

[5]                 There had been previous exchanges with respect to dates for the Examination for Discovery.

[6]                 Issue: Should the Lin statement of defence be struck pursuant to Rule 97 of the Federal Court Rules, 1998?

Analysis and Decision

[7]                 Federal Court Rule 97 reads as follows:

97. Failure to attend or misconduct - Where a person fails to attend an oral examination or refuses to take an oath, answer a proper question, produce a document or other material required to be produced or comply with an order made under Rule 96, the Court may

(a) order the person to attend or re-attend, as the case may be, at his or her own expense;

(b) order the person to answer a question that was improperly objected to and any proper question arising from the answer;

(c) strike all or part of the person's evidence, including an affidavit made by the person;

(d) dismiss the proceeding or give judgment by default, as the case may be; or

(e) order the person or the party on whose behalf the person is being examined to pay the costs of the examination.

[8]                 Rule 97 would allow the relief requested by the Plaintiffs. After having read the materials filed by the parties and after considering the parties' oral representations I am not prepared to strike the defence of the Defendant Lin and to enter default judgment. There were attempts to schedule discovery since November 2003 albeit it being without success for various reasons. I am however prepared to order that discoveries in this matter be completed by March 17^th, 2004.

[9]                 The Plaintiffs request that I grant an extension of the time with respect to a status review. I do not believe that it is necessary. There is no evidence that a Notice of Status Review has been issued and the discovery will take place by March 17^th, 2004.

[10]            The Plaintiffs' motion is dismissed.

[11]            There shall be no order as to costs.

                                                  ORDER

THIS COURT ORDERS that

1.          The Plaintiffs' motion is dismissed.

2.          Examination for Discovery in this proceeding shall take place by March 17^th, 2004.

3.          There shall be no order as to costs.

                                                                                 "John A. O'Keefe'                 

                                                                                                           J.F.C.                       

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-2074-02

STYLE OF CAUSE:              VIDEO VOX ENTERPRISES INC. and

TVB (OVERSEAS) LIMITED

                                                                                                       Plaintiffs

and

XIANG RUI LIN carrying on business as ZHONG HUA

VIDEO CENTRE and AI HUA CHEN (also known as Ai

Hua Lin) and 6045324 CANADA INC. carrying on

business as ZHONG HUA VIDEO CENTRE

                                                                                                  Defendants

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:                        FEBRUARY 23, 2004

REASONS FOR ORDER

AND ORDER BY:                               O'KEEFE J.

DATED:                                                 FEBRUARY 26, 2004

APPEARANCES:

SOLICITORS OF RECORD:

FEDERAL COURT

                                    Date: 20040226

                               Docket: T-2074-02

BETWEEN:

VIDEO VOX ENTERPRISES INC. and

TVB (OVERSEAS) LIMITED

                                                Plaintiffs

and

XIANG RUI LIN carrying on business as ZHONG HUA VIDEO CENTRE and

AI HUA CHEN (also known as Ai Hua Lin) and

6045324 CANADA INC. carrying on business as ZHONG HUA VIDEO CENTRE

                                            Defendants

REASONS FOR ORDER

AND ORDER